04.11.10

Summary: More evidence that the attacks against IBM are actually coming from Microsoft and that Müller plays a role in it (Müller set up his anti-IBM blog when he got connected with CCIA’s Executive VP, who works with Microsoft)

WE keep promising to depart from this overreported subject, but as the plot thickens this becomes harder to avoid. Previous posts about TurboHercules vs IBM are:

For those who are not aware, Florian Müller became a lobbyist, but whose lobbyist? More recently he became known for his attempts to derail the Munich migration to GNU/Linux. Florian Schießl, one of the people leading the Munich migration, currently writes: “Wow, Florian Müller’s Blog started just a few days ago. Only a PR campaign, nothing to do with #swpat in real, imho http://is.gd/bm4BA #fail” (and to Rui Seabra he says that “the whole #IBM patent story is just another PR stunt by the “famous” lobbyist Florian Müller.”).

Müller is still at it on more than a daily basis. It’s like a nonstop attack on IBM in a brand new blog (it’s the same in Maureen O’Gara’s ‘blog’ [1, 2] at the moment). To clarify again, Techrights believes that evidence is sufficient to call TurboHercules a “Microsoft proxy” (see this article from Timothy Prickett Morgan), but IBM’s overall attitude towards software patents has always been a problem in general. According to this, “IBM Denies Open Source Sellout” (which is true). This is not about IBM “selling out” but about IBM defending itself from Microsoft attacks; nonetheless, IBM does not help Open Source by promoting software patents. As the president of the FFII showed this morning using an IBM document[PDF], “IBM believes harmonisation should occur along lines which endorse the current practice and case law of the EPO.” For the uninitiated, “harmonisation” is a way of bringing software patents to Europe.

“As for Microsoft, in a perfect world, someone will in due time bring an complaint against Microsoft for arranging antitrust complaints against its competition.” –Pamela Jones, GroklawHere is Groklaw’s initial take on the TurboHercules vs IBM case (written in “News Picks” before publishing a whole post): “Here’s my take. First, on the author’s use of arguments about Apple and monopoly markets, the courts already ruled that Apple doesn’t have a monopoly in the relevant market, so that analogy isn’t legally on point. Beyond that, remember when Microsoft said their competitors would be having antitrust issues? Remember when Maureen O’Gara was one of the very first to write about the TurboHercules antitrust threat to IBM, almost a year ago? And now Florian Mueller, who disrupted the Munich switch to Linux and later famously tried to use MySQL’s license as a way to block the Oracle-Sun deal, including them suggesting that the GPL license be tossed overboard in favor of a BSD-like license, now appears in the TurboHercules story, attacking IBM. What might that tell us? The Microsoft gang’s all here? That this is a manufactured anti-trust issue? That if you are a competitor of Microsoft, someone will file an antitrust complaint against you? You think? Here’s TurboHercules’s take on why they filed, so you can have the whole picture. I can’t speak for the entire open source community, just for myself. But if Florian Mueller tells me to go to the right, I’m inclined immediately to look to the left or straight up or down for alternative options. As for Microsoft, in a perfect world, someone will in due time bring an complaint against Microsoft for arranging antitrust complaints against its competition. They should put more energy into creating good products. Then they wouldn’t have to resort to such tactics.”

A lot more discussion is going on in IRC (logs available online), but here is the gist of it.

“Müller added a LinkedIn connection to Erika Mann, CCIA’s Executive Vice President and head of CCIA’s European office…”One thing that came up some time between March 22nd and March 29th is that Müller added a LinkedIn connection to Erika Mann, CCIA’s Executive Vice President and head of CCIA’s European office (Microsoft and CCIA work together [1, 2]). That was just before he started to attack IBM like he also attacked Oracle some months ago (along with the GPL). He even created a new blog for this purpose.

We are a little saddened to see that Steven J. Vaughan-Nichols (SJVN) points the finger at what he calls “Linux fans”* (hello, hypocrisy) and blames them for IBM’s PR damage.

That’s not to say that Linux doesn’t have its share of internal battles that don’t do anyone any good. Free software founder Richard M. Stallman’s insistence that Linux should be called GNU/Linux puzzles more people than it does bringing anyone to Linux, or GNU/Linux if you insist. In the last few days though, another Linux family fight has erupted.

This time around, it’s open-source developer and anti-patent political lobbyist Florien Mueller accusing IBM of breaking its promises to the FOSS (free and open-source software) community of not using patents against it. Mueller’s is ticked off that TurboHercules, an open-source z/OS emulator company, over its possible misuse of IBM patents, which includes two that’s covered by IBM’s pledge to not sue open-source companies or groups using these patents.

I have several problems with this. First, as Pamela Jones of Groklaw points out, TurboHercules started the legal fight with IBM and the open-source software license it uses isn’t compatible with the GPL–the license that covers Linux. Second, this is really just a standard-issue business fight that involves patents. It does not, as Mueller would have it, show that “After years of pretending to be a friend of Free and Open Source Software (FOSS), IBM now shows its true colors. IBM breaks the number one taboo of the FOSS community and shamelessly uses its patents against a well-respected FOSS project, the Hercules mainframe emulator.”

Patents could lead to the mutually assured destruction of the software industry and the parading of pledged patents in the opening of a dispute between IBM and TurboHercules threatens to upset the only progress towards a safer world for open source.

Patents are akin to the missiles of the Cold War. The super powers of the software industry have built up large arsenals of them to give them bargaining power. But if all companies who held patents were to pursue all infringements of their patents at the same time, there would be nothing left of the entire IT industry except the legal departments.

[...]

That said, it is somewhat essential to isolate the overarching problems with patents from the specific problem of the pledged patents. The former is a systemic problem which requires complex negotiation, legal reforms and an industry wide consensus that the problem exists in the first place. The latter though is a specific problem, one that IBM can immediately resolve by saying “Sorry, those two patents were not meant to be there”. That one move would reassure the community. IBM could, possibly, enhance their good reputation in the community by creating a new 2010 patent pledge which puts more of IBM’s near 50,000 strong arsenal of patents “beyond use” against open source software.

The only real solution is to invalidate them all or issue a legal contract that renders them useless. This is not realistic (too Utopian) given that IBM uses its patents to milk competitors and make over $1 billion per year doing almost nothing. IBM is now obliged to do this for shareholders. This is unfortunate because they use patents as a welfare system that mostly funds lawyers and cannot be afforded by most companies in the same arena**. These companies do complain sometimes, so ideally, IBM should let go and not carry on controlling using patents, however quietly.

In a recent patent filed at the USPTO, Microsoft has sought to bolster its product offerings with an interesting recommendation engine. Inspired by the recommendation algorithm incorporated on websites like YouTube, Microsoft TV’s recommendation engine will recommend TV shows, movies based on user interests as well as the program’s functional value.

This is just a fence. Who would benefit from such a patent except Microsoft? And doesn’t that involve profiling (euphemism for “spying on”) a user’s activity?

The case also illustrates what RedMonk analyst Stephen O’Grady calls “the inevitable outcome of software patents: They get used.”

O’Grady is against software patents, “not for ideological reasons, but because it is self-evident to me that there is no reasonable mechanism for evaluating and granting patents,” he told LinuxInsider.

We wrote about O’Grady’s views on software patents in this older post. He is right on target. █
_____* “Linux”, which is the kernel IBM put a lot of money in, is not the whole of Free software.

** IBM could reform the system if it wanted to (IBM’s Kappos runs the USPTO), but that would not be beneficial to IBM’s shareholders. The “indemnification” advantage IBM markets to customers is also a way for IBM to suppress use of GNU/Linux that’s not from IBM (e.g. plain Debian).

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15 Comments

SVJN is now, and always has been, a fence-sitter. He is almost, but not quite, maybe, sometimes, kind of/sort of, half-heartedly supportive of Free Software…but never without a little jab or two at those who actually take a stand. Meh.

His wife uses a Mac. By the way, I wish Groklaw did more to criticise Apple; it often does the opposite.

wallclimber Reply:April 11th, 2010 at 12:40 pm

Because Groklaw is a blog about the law and technology, I believe that PJ will say plenty when Apple does something illegal. At this point, every rotten thing Apple does mostly hurts itself and its own customers…and makes GNU/Linux look great in comparison. (Hey, what about “Rotten Apples” for a campaign title?

I have just read your response. Therein, you don’t deny what I wrote (instead you attack straw men, e.g. I didn’t argue that you had not known Erika Mann beforehand). In fact, you dance around the issue just as TH danced around the question about its relationship with Microsoft (which was later made very obvious). Be sure to follow the links and see my explanation of why Microsoft funds CCIA and Black in a very special way; don’t conveniently omit details, please.

So, Florian, are you in contact with TH and CCIA? You sneakily fail to address this point. Have you been in touch with Carina Oliveri?

I won’t engage in back-and-forth discussions on this website here, where I only wanted to point out that I have responded on my blog. I will now quickly update my above-mentioned blog post to address these follow-on questions. If there are more questions and I don’t update, then it’s because at some point I’ll believe I can’t be reasonably expected to answer questions that either digress from the original issue or keep going in circles.

Why are you not willing to engage in a two-way debate/conversation? We can use IRC if you prefer.

I’ve noticed Hartmut’s argument about CCIA where he refers to 2003-4. Ed Black, CCIA’s chief executive, received $9.75 million in a settlement with Microsoft in November 2004. That makes a huge difference and you know it.

Report: Microsoft paid CCIA official as part of antitrust settlement

“The antitrust settlement between Microsoft Corp. and the Computer and Communications Industry Association (CCIA) announced earlier this month included a payment of $9.75 million to the CCIA’s president, according to a report published today.

“Almost half of the $19.75 million total settlement went to Ed Black, who has been the president and CEO of the Washington-based industry organization since 1995, in a deal approved by the CCIA board, according to a report in the Financial Times. The newspaper cited confidential documents in its story.

“A spokesman from Microsoft declined to comment on the FT report. The CCIA referred questions to Black, who couldn’t be reached. ”

He won’t respond here because he can’t. His response on his blog is mostly to accuse BN of bad behavior and ignorance while confirming the facts you dug up.

He first says it was improper to notice he’s a buddy of Erika Mann but then goes on to say he’s been a friend for ever. Muller basically paints Mann as a soccer mom and his contact as trivial and innocent. The contact may be trivial, but Mann occupies a position that netted a predecessor 9 million Microsoft dollars for betraying Samba and FSFE by dropping out of an important EU anti-trust complaint against Microsoft. Muller goes on and on with distracting details about Linkedin and puffs himself up with his 290 contacts but accuses BN of being rude to have published the contact with Mann. Apparently, truth is something he only wants to share with business buddies and we should all be awed by how many of those kinds of people he knows.

Muller answers the charge of being an anti-IBM attack dog by throwing more mud on IBM.

He denies CCIA is doing things that benefit Microsoft by saying that Google, Red Hat and IBM are “members” of CCIA. Like the ISO, it’s the corrupting and embarrassing Microsoft membership that’s the problem. The membership of those other companies does little to change the nature of CCIA’s action, it seems, and we might expect most of them to issue statements and perhaps withdraw if any of them cares what a clown like Muller has to say about them or what CCIA does.

In short, PJ and others quickly got the TH story right and Muller fails to address any of issues raised. TH is not so much a “conspiracy” as it is the latest proxy trick by Microsoft. The involvement of people like Muller and his 290 Linkedin friends only works to prove the point. Muller has proven himself an enemy of free software and a Microsoft promoter many times in the past. He lends as much credibility to things as MoG, Ed Bott and other raving sell outs.

He still posts about 2 pieces of anti-IBM spin per day, despite the fact that everyone in the “FOSS” world (as in “fosspatents”) has moved on to discussing the MS-LH connection, not IBM’s long-standing love of patents.

The “no further comment” policy suits PR departments, not a so-called ‘activist’ (lobbyist).

While it is acceptable to questions people’s motivations for saying what they say, it is no substitute for actually evaluating the validity of what they say. Rob Wier’s criticisms of OOXML are made no less valid because he works for IBM, nor are Miguel de Icaza’s criticism of … well, everything he criticizes, made any less valid because of his motivations to market Microsoft technology (they are invalid because they are invalid ).

If Florian Muller is serving as a proxy for Microsoft in his battle against software patents then Bravo Microsoft! for finally realizing how destructive and illogical software patents are, especially to the Free Software community. Of course, Microsoft has not changed their opinion on software patents, and I seriously doubt that they should wish Mr Muller’s campaign against software patents be in the least bit successful.

Groklaw’s Miss Jones, regardless of whether her own motivations stem from some alleged association with IBM*, is wrong on several counts:

1) She claims that TurboHercules requested a license from IBM for z/OS when in fact TH requested that IBM offer licensing to IBM’s z/OS customers that would permit z/OS running on TurboHercules.

2) She claims that TurboHercules’ complaint to the EU constitutes a lawsuit when in fact it does not.

3) She equates the EU complaint against IBM’s proprietary z/OS with a lawsuit against an Open Source product.

4) She presumes her own determination of what constitutes “Open Source” should preempt the judgment of Open Source Initiative.

5) She suggests that providing a list of applicable patents does not constitute a threat which, while I agree, ignores that the “threat” occurred prior to the list being provided when IBM claimed to have intellectual property which would be infringed by the Hercules software.

* I don’t believe Miss Jones to be an “IBM shill”, nor do I believe Florian Muller to be a “Microsoft shill” — the point is that the evidence and arguments should presented and analyzed regardless of individual motivations.

What Else is New

The latest tactics of the patent microcosm are just about as distasteful as last month's (or last year's), with focus shifting to the courts and few broadly-misinterpreted patent cases (mainly Finjan, Berkheimer, and Aatrix)

The fightback against Section 101 and the US Supreme Court (notably Alice) seems to concentrate on old and new buzzwords, such as "Software as a Medical Device" ("SaMD") or "Fourth Industrial Revolution" ("4IR"), which the EPO recently paid European media to spread and promote

Infomercials are still dominant among news about patents, in effect drowning out the signal (real journalism) and instead pushing agenda that is detached from reality, pertinent facts, objective assessment, public interest and so on

A discussion about the infamous abundance of patent cases in the Eastern District of Texas (TXED/EDTX) and what this will mean for businesses that have branches or any form of operations there (making them subjected to lawsuits in that district even after TC Heartland)

The patent microcosm is so eager to stop the Patent Trial and Appeal Board (PTAB) that it's supporting sham deals (or "scams") and exploits/distorts the voice of the new USPTO Director to come up with PTAB-hostile catchphrases

Judgmental patent maximalists are still respecting high courts only when it suits them; whenever the outcome is not desirable they're willing to attack the legitimacy of the courts and the competence of judges, even resorting to racist ad hominem attacks if necessary

With or without the Unified Patent Court (UPC), which is the wet dream of patent trolls and their legal representatives, the EPO's terrible policies have landed a lot of low-quality patents on the hands of patent trolls (many of which operate through city-states that exist for tax evasion -- a fiscal environment ripe for shells)

The money-obsessed, money-printing patent office, where the assembly line mentality has been adopted and patent-printing management is in charge, is devaluing or diluting the pool of European Patents, more so with restrictions (monetary barriers) to challenging bad patents

he media in Europe continues to be largely apathetic towards the EPO crisis, instead relaying a bunch of press releases and doctored figures from the EPO; only blogs that closely follow EPO scandals bothered mentioning the new petition

The Patent Trial and Appeal Board (PTAB) sees the number of filings up to an almost all-time high and efforts to undermine PTAB are failing pretty badly -- a trend which will be further cemented quite soon when the US Supreme Court (quite likely) backs the processes of PTAB

The EPO is trying very hard to silence not only the union but also staff representatives; it's evidently worried that the lies told by Team Battistelli will be refuted and morale be affected by reality

Suspicions that Iancu might destroy the integrity of the Office for the sake of the litigation ‘industry’ may be further reaffirmed by the approach towards patent maximalists from IAM, who also participated in the shaming of his predecessor, Michelle Lee, and promoted a disgraced judge (and friend of patent trolls) for her then-vacant role